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Wolf administration officials grilled in court over closing orders

4 min read
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The shutdown orders and business waivers issued by the Wolf administration after the coronavirus pandemic reached Pennsylvania came under scrutiny in U.S. District Court in Pittsburgh Wednesday as part of a lawsuit filed by Washington, Greene, Fayette and Butler counties.

It was the second and final day of testimony in the case. Last week, business owners and elected officials testified how the shutdown orders harmed businesses in those counties and asserted that the waiver system that allowed some businesses to remain open in the early weeks of the pandemic was arbitrary and capricious. The suit argues that the shutdown orders violated the constitutional rights of Pennsylvanians and is asking that Gov. Tom Wolf and Rachel Levine, the commonwealth’s health secretary, be barred from enforcing them. The suit is also asking for an end to the waiver system.

The suit is not seeking monetary damages.

Throughout the day, lawyers for the plaintiffs tried to portray administration officials as lacking in public health knowledge and acting inconsistently when deciding which businesses should open or close. Administration officials countered that they were responding to a once-in-a-century pandemic by following recommendations from the Centers for Disease Control and Prevention, copying measures that had been implemented in other states and even looking back at how localities responded to the 1918 flu pandemic.

Sam Robinson, a deputy chief of staff for the governor, said a group that made policy recommendations, said, “We were trying to respond very quickly regarding a public health emergency that had not been seen in the commonwealth or nationally in 100 years.”

He said it was not “a formalized group,” and no minutes were kept of the meetings. When discussing a more recent decision to limit restaurant capacity to 25% for indoor dining, and limiting gatherings to 25 people indoors or 250 people outdoors, they looked at models that had been developed in states like Colorado, Florida, Texas and Louisiana and developed a plan “that we thought would make the most sense in Pennsylvania.”

When asked by attorney Thomas King whether he was aware of a specific wedding celebration within the commonwealth that caused a COVID-19 outbreak, Robinson said he was not aware of one, but “we have a significant amount of information about how the virus spreads when people are densely packed together.”

Robinson conceded that the stay-at-home order issued by Wolf did not mean that police should stop people if they were traveling outside their homes, and acknowledged that the governor participated in a Black Lives Matter protest in Harrisburg in June in contradiction to his own order, but that he was “trying to show support for a cause, the eradication of racism.”

Neil Weaver, executive deputy secretary in the Department of Community and Economic Development, said that he and other officials used codes in the North American Industry Classification System (NAICS) to help guide decision-making on whether businesses qualified as life-sustaining or not. When businesses would apply for waivers, he said they would use information provided by the businesses to help determine if they qualified.

“It depended on the information provided by the business,” Weaver said. “If they did not indicate they were life-sustaining, then no.”

Weaver said some businesses would apply multiple times for waivers, and those requests were “slowing the process for getting the waivers approved and getting them out the door.”

The intent of the governor’s stay-at-home orders “was to reduce the amount of interaction between individuals,” according to Sarah Boateng, executive deputy secretary at the Pennsylvania Department of Health. She noted that New Zealand put a strict shutdown order in place when COVID-19 first hit, and they now have no cases, “which they attribute to that mitigation and the separation of individuals.”

All of the testimony and cross-examination was carried out virtually.

Judge William S. Stickman IV will issue a declaratory judgment in the case. The plaintiffs are hoping the case will be forwarded to the U.S. Supreme Court, and it will overturn a ruling by the Pennsylvania Supreme Court that upheld Wolf and Levine’s authority to issue orders during the pandemic.

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